Guzman v. Board of Parole

784 February 4, 2026 No. 60

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

JAIME ESTRADA GUZMAN,

Petitioner,

v.

BOARD OF PAROLE AND POST-PRISON

SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A186371

Argued and submitted December 5, 2025.

Kenneth A. Kreuscher argued the cause for petitioner. On

the opening brief were Malori Maloney and Oregon Justice

Resource Center. Also on the reply brief were Kassidy N.

Hetland and Oregon Justice Resource Center.

Philip Thoennes, Assistant Attorney General, argued the

cause for respondent. Also on the brief were Dan Rayfield,

Attorney General, and Benjamin Gutman, Interim Deputy

Attorney General.

Before Tookey, Presiding Judge, Kamins, Judge, and

Jacquot, Judge.

TOOKEY, P. J.

Reversed and remanded.

Cite as 346 Or App 784 (2026) 785

TOOKEY, P. J.

Petitioner seeks judicial review of a final order of

the Board of Parole and Post-Prison Supervision (the board).

In his sole assignment of error, petitioner contends that the

board “erred in setting a post-prison supervision term of 36

months when petitioner had already served nine months of

post-prison supervision.” The board responds that it did not

err, because “the 275 operative days of supervision that peti-

tioner spent out of prison” did not “qualify as post-prison

supervision.”

Because the board ought to have, but did not, credit

petitioner for the 275 days that petitioner spent on post-

prison supervision when setting his term of post-prison

supervision, we reverse and remand.

BACKGROUND

In May 2020, after pleading no contest to certain

conduct, petitioner was sentenced to 25 months’ incarcera-

tion in the custody of the Oregon Department of Corrections

(ODOC) and three years of post-prison supervision; thus,

the total duration of petitioner’s sentence was 61 months.

A little under a year after petitioner’s conviction—

in February 2021—Governor Kate Brown, in consideration

of the “threat presented by COVID-19,” signed a “condi-

tional and revocable commutation of sentence” for petitioner

and other incarcerated individuals who met certain crite-

ria (Releasees). The commutation order provided that the

Governor commuted “the remaining term of incarceration

of each Releasee, from incarceration to post-prison supervi-

sion, effective as of the 11th day of February 2021, immedi-

ately upon execution of this order.”

The order further provided that (1) it did not “relieve

any of the Releasees of post-prison supervision,” (2) “each

Releasee shall not violate any state or federal law during the

period of time from the effective date of this order through

the end of that particular Releasee’s post-prison supervi-

sion (calculated by DOC and included in Exhibit A)”; and

(3) if a Releasee’s commutation is revoked—either because

the “Releasee has violated any of the conditions of this

786 Guzman v. Board of Parole

conditional and revocable commutation, or that a Releasee’s

continued release in the community no longer serves the

interests of the State of Oregon”—”the Releasee shall be

returned to prison to serve out his or her sentence that

was remaining at the time [the] commutation was granted

according to the Releasee’s Judgment of Conviction.”

Attached to the commutation order was an exhibit—

Exhibit A—containing a list of certain adults in ODOC cus-

tody, including petitioner. On the exhibit, next to petitioner’s

name, was a note that petitioner was due to serve 36 months

of post-prison supervision.

In connection with the commutation order, the

board issued an “Order of Supervision Conditions” that

imposed various supervision conditions on petitioner, stated

that petitioner is “hereby released,” and stated that “parole

or post-prison supervision shall begin on release from phys-

ical custody.”

Subsequently, petitioner was supervised in the

community, and proceedings were initiated concerning peti-

tioner after he was alleged to have violated the terms of his

supervision. A hearing summary from March 2024 reflects

that petitioner had failed to “report as directed” and failed

to “obey all laws.” It also reflects that petitioner was “cur-

rently serving 36 months of Post-Prison supervision,” that

he was informed that the “Board could decide to Revoke

his [post-prison supervision] for up to 180 Days,” and rec-

ommended a “180-day Revocation due to [petitioner’s] new

law violations.” Ultimately, the board informed petitioner

that his “post-prison supervision has been revoked for 180

days,” that “post-prison supervision has stopped during this

revocation sanction,” that the board is “adjusting the post-

prison supervision expiration date for the amount of time

supervision has been stopped,” and that petitioner “is not

being ordered to serve more post-prison supervision than

that ordered by the sentencing court.”

On April 30, 2024, Governor Tina Kotek signed

an order revoking petitioner’s “conditional and revocable

commutation of sentence.” The order revoking the commu-

tation provides that “as a condition of [the] commutation,

Cite as 346 Or App 784 (2026) 787

[petitioner] agreed to abide by the terms and conditions

of his post-prison supervision and not to violate any state

or federal law” and that the Governor determined in her

“sole judgment that [petitioner] violated conditions of that

Conditional and Revocable Commutation of Sentence.”

After the commutation was revoked, and due to

petitioner’s commutation being revoked, the board reduced

petitioner’s “sanction” for violation of post-prison super-

vision conditions from 180 days to 72 days, and petitioner

served the prison term that remained on his sentence at the

time his commutation was granted.

On August 28, 2024, the board issued an “Order

of Supervision Conditions” stating that, upon release from

ODOC, petitioner would be placed on post-prison supervi-

sion for a period of 36 months. That is, in the August 2024

order, in calculating the duration of petitioner’s post-prison

supervision, petitioner was not given any credit for the time

that he had spent on supervision after he received the com-

mutation but before the commutation was revoked.

Petitioner sought administrative review of the

board’s August 2024 order contending, among other points,

that the board did not have statutory authority to extend

his post-prison supervision term beyond the term imposed

by the trial court and that it had done so by imposing 36

months of post-prison supervision. Petitioner requested

that the board order a term of post-prison supervision that

accounted for the time petitioner served on supervision

before his commutation was revoked, which petitioner cal-

culated as 275 days (approximately nine months).1 As peti-

tioner saw it, in essence, absent correction by the board, his

total sentence was 70 months—25 months in ODOC cus-

tody, plus approximately 45 months on post-prison supervi-

sion. And he contended that that was unlawful, because he

was only sentenced to a sentence of 61 months by the trial

1

Much of the time petitioner was in the community and out of custody during

the commutation—899 of the days—was “inoperative” time. See OAR 291-100-

0008(17) (inoperative time is “[t]ime spent on abscond, escape, or unauthorized

departure from custody, any form of temporary or transitional leave, or parole or

post-prison supervision, which does not count toward service of the sentence(s)”).

Petitioner does not contend that in determining the duration of his post-prison

supervision the board was required to give him credit for that “inoperative” time.

788 Guzman v. Board of Parole

court—25 months in ODOC custody, plus 36 months of post-

prison supervision.

The board disagreed with petitioner. In ARR 1, the

board explained, in “preparation for your early release on

the former governor’s commutation, the Board issued an

Order of Supervision Conditions, and on February 11, 2021,

you were placed on [post-prison supervision].” The board

further explained, however, that the

“former Governor * * * ordered that upon revocation

of the commutation, you would be returned to prison to

serve out (your) sentence that was remaining at the time

this commutation was granted according to the terms

of the Judgment of Conviction. Thus, when Governor

Kotek revoked your commutation, you were required to

be returned to [O]DOC to finish the entire sentence that

remained at the time of the original conditional commu-

tation. Pursuant to OAR 213-005-0002(3)[2], your terms of

[post-prison supervision] could not begin until completion

of your prison term and OAR 213-005-0003[3] required that

your terms of [post-prison supervision] had to be served

in the community. Accordingly, you are not afforded any

[post-prison supervision] credit for the time spent in the

community after being granted the conditional commu-

tation, because upon revocation of the commutation, your

entire unserved sentence was reinstated. As a result of

the revocation, any time spent in the community was not

spent serving the post-prison supervision portion of your

sentence. Instead, you merely spent time in the commu-

nity awaiting service of the remainder of your entire sen-

tence. Any time you spent in the community under the

terms of the conditional commutation, on the Board’s Order

of Supervision Conditions, prior to the revocation of your

commutation, simply cannot be credited towards any sub-

sequent [post-prison supervision] calculation.”

(Internal quotation marks omitted.)

2

OAR 213-005-0002(3) provides, in part:

“The term of post-prison supervision shall begin upon completion of the

offender’s prison term or such term as directed by the supervisory authority.”

3

OAR 213-005-0003 provides:

“When a term of post-prison supervision is imposed as part of a sentence,

the offender shall serve the term of supervision in the community under the

supervision of the Department of Corrections or a corrections agency desig-

nated by the Department.”

Cite as 346 Or App 784 (2026) 789

Thus, we understand the board’s determination that

petitioner was not due credit for the time he served in the

community under supervision to rest on two related prem-

ises: First, that under the terms of the Governor’s commuta-

tion, upon revocation of the commutation, petitioner was, in

effect, returned to square one with regard to the time left on

both the incarcerative (i.e., custodial) portion of his sentence

and the non-incarcerative (i.e., post-prison supervision) por-

tion of his sentence. Second, as a result of the revocation,

petitioner’s “time spent in the community” after release from

prison—during which he was supervised—was not actually

time spent on post-prison supervision, but instead “merely”

time “in the community awaiting service of the remainder of

[petitioner’s] entire sentence.”

Petitioner seeks judicial review of the board’s order.

ANALYSIS

We review the board’s order “for legal error, sub-

stantial evidence, and substantial reason.” Person v. Board

of Parole, 327 Or App 332, 339, 535 P3d 779 (2023).

On judicial review, as noted, petitioner contends

that the board erred in calculating the duration of post-

prison supervision that he would be required to serve upon

release from incarceration. In advancing that argument,

petitioner argues both that “the board lacked authority to

extend petitioner’s term of post-prison supervision” and that

“petitioner’s commutation did not give the board authority to

extend his term of post-prison supervision,” because, among

other reasons, “principles of contract interpretation do not

support the board’s reading of the commutation.” Ultimately,

we understand petitioner to contend that the board erred as

a matter of law.

The board, for its part, argues that “the board

correctly released petitioner to 36 months of post-prison

supervision.” As the board sees it, under the commutation

order, “when petitioner’s commutation was revoked, he was

returned to prison to finish serving the incarcerative por-

tion of his sentence,” and “petitioner could not have served

any term of post-prison supervision before he completed the

incarcerative portion of his sentence, because post-prison

790 Guzman v. Board of Parole

supervision begins only when the offender completes their

term of imprisonment and is released to the community.”

(Emphasis in original.)

Having considered the parties arguments and the

board’s order, we conclude that the board erred.

ORS 137.010 imposes a duty “on the court hav-

ing jurisdiction to pass sentence to do so in accordance

with rules promulgated by the Oregon Criminal Justice

Commission unless otherwise specifically provided by law.”

Gaynor v. Board of Parole, 165 Or App 609, 614-15, 996 P2d

1020 (2000), abrogated on other grounds by State v. Hart, 188

Or App 650, 72 P3d 671, rev den, 336 Or 126 (2003) (empha-

sis in Gaynor). And pursuant to ORS 137.010(10), “[a] judg-

ment of conviction that includes a term of imprisonment for

a felony committed on or after November 1, 1989, shall state

the length of incarceration and the length of post-prison

supervision.”

Post-prison supervision is governed by both a stat-

utory and a regulatory framework. In this case, given the

terms of the Governor’s “conditional and revocable commu-

tation of sentence”—including repeated references to post-

prison supervision—we understand the Governor to have

chosen to incorporate the statutory and regulatory post-

prison supervision framework into her commutation of peti-

tioner’s sentence. See Brown v. Kotek, 372 Or 260, 268, 548

P3d 1286 (2024) (noting that the Governor incorporated the

“statutory and regulatory post-prison supervision frame-

work” into the “acceptance agreement” related to a simi-

lar conditional commutation order during the COVID-19

pandemic).

Post-prison supervision itself is, at bottom, a “ ‘term

of community supervision.’ ” Id. (quoting OAR 213-005-

0002(1); emphasis in Brown). “That term is determinate,” id.

(emphasis in Brown), meaning “the sentence imposed by the

sentencing court * * * represents the actual amount of time

that an offender” will serve, subject to “certain reductions

allowed by law,” State v. Ambill, 282 Or App 821, 824, 385

P3d 1110 (2016), rev den, 361 Or 524 (2017) (so noting with

respect to incarceration). The board has no power to “extend

Cite as 346 Or App 784 (2026) 791

a post-prison supervision term beyond that imposed by the

trial court.” Gaynor, 165 Or App at 613-14.

Ultimately, a central question in this case is whether

the board was correct in determining that the time peti-

tioner spent in the community under supervision was not

“post-prison supervision.” That is important for petitioner

because, if it was post-prison supervision, and the board has

now ordered petitioner to serve an additional 36 months of

post-prison supervision, he will be required to serve approx-

imately 45 months of post-prison supervision total, which

is in excess of that to which he was sentenced. At least as

a general matter, that would be an unlawful order. See

Gaynor, 165 Or App at 614 (“[T]he Board did not possess the

authority to lengthen petitioner’s term of post-prison super-

vision beyond that ordered by the court.”).

We conclude that, contrary to the board’s determi-

nation, during the Governor’s commutation of his sentence,

petitioner was, in fact, serving post-prison supervision while

he was being supervised in the community. In reaching that

conclusion, we observe that the board repeatedly described

petitioner’s supervision in the community as “post-prison

supervision”; the board sanctioned petitioner after it deter-

mined that petitioner had violated the conditions of that

“post-prison supervision”; the board revoked petitioner’s

“post-prison supervision” for 180 days during which peti-

tioner’s “post-prison supervision * * * stopped,” and it then

“adjust[ed] the post-prison supervision expiration date for

the amount of time supervision has been stopped”; and,

after the Governor revoked the commutation of petitioner’s

sentence, the board reduced petitioner’s sanction for violat-

ing the conditions of his “post-prison supervision” from 180

days to 72 days.

Notwithstanding those facts, as noted, on appeal,

the board takes the position that petitioner’s time under

supervision in the community after his release from prison

was not time spent on post-prison supervision. As we under-

stand the board’s position, in its view, the Governor’s revo-

cation of the commutation of petitioner’s sentence retroac-

tively altered the nature of the supervision that petitioner

had already been subject to in the community, which had

792 Guzman v. Board of Parole

the effect of causing petitioner’s post-prison supervision to

become something else entirely: time that petitioner “merely

spent” in “the community awaiting service of the remainder

of [his] entire sentence.”

Whether the board’s position is best conceived of

as advocating for Schrödinger’s post-prison supervision4 or

Kafka’s, we are aware of no authority—and the board does

not point to any authority—allowing an event subsequent to

petitioner’s post-prison supervision (i.e., revocation of peti-

tioner’s commutation) to alter the nature of the supervision

that petitioner had already experienced while he was in the

community; that is, we are aware of no authority allowing

the board to recharacterize the time petitioner served on

post-prison supervision into time not spent serving post-

prison supervision.5

Nor does the result reached by the board follow

from the Governor’s commutation order. As noted, in set-

ting the duration of petitioner’s post-prison supervision

following his release in 2024, the board pointed to a por-

tion of the Governor’s commutation order providing that if

the Releasees’ commutation is revoked because “Releasee

has violated any of the conditions of this conditional and

4

In State v. Kamph, 297 Or App 687, 442 P3d 1129 (2019), this court rec-

ognized that, in Oregon, “a passenger in a vehicle that is stopped by police is

Schrödinger’s passenger—he exists in two potential states, both seized and

not seized, and only one of those potential states becomes reality depending on

the lens through which we observe him.” Id. at 691 (explaining a passenger in

a stopped vehicle is not seized when viewing the encounter “through the lens

of Article I, section 9” but is seized viewing the encounter “through the lens of

the Fourth Amendment”). Similarly, in the board’s view, as we understand it,

during petitioner’s time in the community, he was in two potential states: on

post-prison supervision and not on post-prison supervision, with only one of those

potential states being reality depending on the temporal lens through which we

observe him (i.e., prior to revocation of the commutation or after revocation of the

commutation).

5

That result is certainly not compelled by the sole rule that the board cites in

support of its position on appeal—i.e., the OAR 213-005-0002(3), which provides

“[t]he term of post-prison supervision shall begin upon completion of the offend-

er’s prison term or such term as directed by the supervisory authority.”

As the board’s order recognizes, in connection with the commutation,

“the Board issued an Order of Supervision Conditions, and on February 11, 2021,

[petitioner was] placed on [post-prison supervision].” It was at that time petition-

er’s post-prison supervision began to run. See Kragt v. Board of Parole, 373 Or

191, 209, 563 P3d 359 (2025) (“Post-prison supervision begins to run when the

offender is released into the community for community-based supervision.”).

Cite as 346 Or App 784 (2026) 793

revocable commutation” or because “a Releasee’s continued

release in the community no longer serves the interests

of the State of Oregon,” the Releasee “shall be returned to

prison to serve out his or her sentence that was remaining

at the time [the] commutation was granted according to the

Releasee’s Judgment of conviction.” (Emphasis added.) As

the board interpreted it, under that provision, when the

Governor revoked petitioner’s commutation, petitioner was

“required to be returned to [O]DOC to finish the entire sen-

tence that remained at the time of the original conditional

commutation,” which we understand, in the board’s view, to

include both the time in the custody of ODOC remaining on

petitioner’s sentence and the post-prison supervision time

remaining on petitioner’s sentence (i.e., 36 months) at the

time of the commutation.

We have a different understanding than the board

of the commutation order. As noted, we understand the

Governor to have chosen to incorporate the statutory and

regulatory post-prison supervision framework into her com-

mutation of petitioner’s sentence. That framework includes

the determinate term of post-prison supervision that was set

by the sentencing court at the time of petitioner’s sentenc-

ing, and which the board cannot extend. Read in that con-

text, as we understand it, the phrase “shall be returned to

prison to serve out his or her sentence that was remaining

at the time this commutation was granted” in the commuta-

tion order refers to the incarcerative portion of a Releasee’s

sentence. We see nothing in the commutation order to sug-

gest the Governor intended to nullify wholesale the time a

Releasee spent on post-prison supervision in the community

if the Governor revoked the commutation.6

The board’s determination to the contrary may fol-

low from its understanding of a literal reading of the phrase,

“the Releasee shall be returned to prison to serve out his or

her sentence that was remaining at the time this commu-

tation was granted,” because a Releasee’s sentence includes

both an incarcerative term and a term of post-prison super-

vision. But such a literal reading of that phrase would also

6

Because we do not read the commutation order to operate in that fashion,

we express no opinion on whether a commutation order could lawfully contain

such a provision.

794 Guzman v. Board of Parole

require a Releasee whose commutation is revoked to serve

out their term of post-prison supervision in prison, some-

thing which is an impossibility under the current statutory

and regulatory framework. See Kragt v. Board of Parole,

373 Or 191, 209, 563 P3d 359 (2025) (“Post-prison super-

vision begins to run when the offender is released into the

community for community-based supervision.”). Thus, we

think a better reading of the commutation order, which is

not particularly artfully drafted, is that a Releasee whose

commutation is revoked is required to serve their remaining

incarcerative sentence in the custody of ODOC, but that, in

calculating their post-prison supervision upon release, they

are due credit for the time spent in the community on post-

prison supervision.

In sum, we conclude that the board erred in deter-

mining that petitioner had not served any time on post-

prison supervision and that it was required to order peti-

tioner to serve 36 months of post-prison supervision upon his

release from ODOC custody. Instead, it ought to have cred-

ited petitioner with the time petitioner had already spent on

post-prison supervision. Thus, we reverse and remand the

board’s order.

Reversed and remanded.